Private Model of Enforcement in European Union Law
Çağdaş Evrim ERGUN*
ABSTRACT
Legal systems are generally enforced through two principal mechanisms. Firstly, their enforcement may rely on public enforcement by the state or an organ such as the Commission in the European Union (the "EU"). However, relying merely on public enforcement is generally inefficient. Secondly, the private model of enforcement may be applied, which allows individuals to take initiative to enforce laws. The experience within the EU provides a particularly good example of the coexistence and sometimes cooperation of both public and private enforcement models.
Recognizing some powers and roles for the individuals in the enforcement procedures is a must, since the institutions of the EU cannot detect themselves all
violations of Community law. The support by individuals is obviously beneficial and even necessary for the effectiveness of the enforcement of EU law. The logic of a
'Europe of Citizens " rather than a "Europe of States " requires that support. ÖZET
Hukuk kurallarının uygulattırılması için genel olarak iki tür model kullanılmaktadır. Bunlardan ilki, kamu tarafından uygulatma olarak adlandırabileceğimiz, devlet veya Avrupa Birliği'nde ("AB") olduğu gibi Komisyon gibi bir organ aracılığıyla hukukun uygulanmasının sağlanmasıdır. Ancak, kamu tarafından uygulatma tek başına her zaman yeterli olmamaktadır. İkinci olarak, hukukun özel uygulattırılması olarak ifade edebileceğimiz ve bireylerin hukukun
' LL.M. in European Law at the University of Exeter; Doctorate of Law Candidate at the Ankara University Faculty of Law; Lawyer admitted in Ankara Bar; E-mail:
uygulatûması için bir takım girişimlerde bulunabileceği bir model mevcuttur. AB hukuku, hukukun uygulattırılmasına ilişkin bu iki modelin bir arada bulunduğu ve hatta işbirliği yaptığı bir örnek niteliğindedir.
Bireylere AB hukukunun uygulattırümasında bir takım yetki ve rollerin tanınması bir gerekliliktir. Zira, AB Kurumları kendi başlarına tüm hukuka aykırılıkları denetleyebilecek konumda değillerdir. Bireylerin hukukun uygulanmasındaki katkıları, AB Hukukunun etkili bir biçimde uygulanabilmesi için hiç şüphesiz faydalı ve hatta gereklidir. "Ülkelerin Avrupası " değil "Vatandaşların Avrupası " fikri de bu katkıyı kaçınılmaz hale getirmektedir.
KEY WORDS
Law Enforcement; Private Model of Law Enforcement; Law Enforcement in the European Union; Role of the Commission in the Law Enforcement; Role of Individuals in the Law Enforcement.
ANAHTAR KELİMELER
Hukukun Uygulattınlması; Hukukun Özel Uygulattınlması Modeli; Avrupa Birliği 'nde Hukukun Uygulattınlması; Hukukun Uygulattırümasında Komisyon 'un Rolü; Hukukunun Uygulattırümasında Bireylerin Rolü.
TERMINOLOGY AND INTRODUCTION A. General
"In this Country, the individual subject has nothing to do with the laws but to obey them "'
Bishop Samuel Horsley
From the time of Mr. Horsley onwards, many things changed giving rise to the modern conception of active citizenship. The influence of individuals in the legal systems and particularly in the law enforcement mechanisms, in all civilized legal systems and especially in Europe, has increased considerably.
Legal systems are useless if they are not effectively enforced. In that respect, they have generally tw o principal mechanisms through which to enforce the norms. Firstly, they may choose to rely on public enforcement by the state or an organ. However, relying merely on public enforcement can be inefficient.2 Although the reasons for this may differ depending on the precise
legal area, which is in question, it is common for public enforcement per se to generate problems, which cause a legal system to supplement it by private model of enforcement, which allows private actions brought by individuals.3
The experience within the European Union (the "EU") provides a particularly good example of this complementarity. In Community law4, public
and private models of law enforcement procedures coexist and sometimes co-operate, such as the role of individual complainants in the enforcement procedure realized by the European Commission (the "Commission").
In considering the role of individuals in the enforcement mechanisms of EU law, consideration might usefully be divided into two sections. First, an examination will be made of the private enforcement before national courts. In that part, we will particularly deal with the enforcement function of the principles of direct effect and state liability. Next, the role of individuals in the enforcement proceedings of the EU Commission will be focused on. In conclusion, I shall draw together a number of aspects resulting from the below analysis including my personal views.
B. Confusing Terminology
Since the use of notoriously slippery terms such as implementation and enforcement causes very often confusions, there is a need to clarify what they exactly refer to. In this article, implementation represents the process whereby Community legal obligations are fulfilled5, while enforcement refers to the
detection and punishment of violations of Community law.
The term "private enforcement" may be used in different meanings. Generally speaking, it denotes legal action by private actors as opposed to public authorities and one could thus link "private enforcement" to a privatization of the enforcement function if the focus of the discussion is
2 Craig, P.P., "Once upon a Time in the West: Direct Effect and the Federalization of EEC
Law", Oxford Journal of Legal Studies, Vol. 12,1999, p. 453.
3 Craig, P. P. (1999), p. 453.
4 In this article, the terms EU law and Community law are used interchangeably.
5 Rawlings, R., "Engaged Elites Citizen Action and Institutional Attitudes in Commission
primarily on the type of actor involved. Combined with Community law, the use of the term "private enforcement" in this paper refers to that perspective, which focuses on the type of actor. It thus means the privatization of the enforcement function by introducing individual subjects to the law enforcement procedures.
The terms of private enforcement and decentralized level of enforcement in this essay will be used interchangeably. And the term public enforcement will refer to centralized enforcement in Community level, with a slight difference: while the term centralized level of enforcement means merely Commission enforcement under Article 226, public enforcement is used both institutional and Member State enforcement under Articles 226 and 227.
The European Parliament (the "EP") and the European Ombudsman (the "EO") have, like the Commission, certain supervisory roles, and even some scholars consider their functions as including enforcement powers7. However,
like the majority of academics,8 this paper will not consider the EP and the EO
as institutionalized enforcement powers, since their role is considerably limited by comparison to the Commission's enforcement role.9 Accordingly, we will
not consider the role of individuals in the supervision functions of the EP and the EO, e.g. petitioning the EP, as a role played in the enforcement mechanisms, and consequently will leave it outside the scope of this analysis.10
I. DIRECT PRIVATE ENFORCEMENT OF EU LAW:
DECENTRALIZED LEVEL OF ENFORCEMENT BEFORE NATIONAL
COURTS
A. Enforcement Function of Direct Effect Doctrine
It is apparent from the early rulings of the ECJ, which established the well-known principle of direct effect, that the institutional or state enforcement
6 Betlem, G., "Cross-Border Private Enforcement of Community Law", in Vervaele, J. A. E.
(éd.), Compliance and Enforcement of European Community Law, The Hague, 1999, p. 397.
7 Audretsch, H.A.H., Supervision in European Community Law, Amsterdam, 1986,
North-Holland Publishing, p. 7. He uses the terms enforcement and supervision interchangeably.
8 E.g. Craig, P. and De Burca, G., European Union Law, Oxford, 1998, p. 72; Mathijsen,
P. S. R. F., A Guide to European Union, London, 1999, Sweet & Maxwell, pp. 73-75.
9 See for parallel comments Kunzlik, P., "The enforcement of EU Environmental Law:
Article 169, the Ombudsman and the Parliament", European Environmental Law Review, Vol. 6, 1997, p. 46.
10 See for the role of individuals in the supervision functions of the EP and the EO; Bonnor,
P. G., "A Comment on Rawlings' 'Engaged Elites Citizen Action and Institutional Attitudes in Commission Enforcement" for comments on that issue, European Law Journal, Vol. 7, 2001, p. 120.
procedures under Articles 226 and 227 provide the mechanisms for ensuring the proper application of Community law.11 The fact that the EU Treaty provides
for other means of enforcement of EU law was made clear by the ECJ in famous Van Gend en Loos n, which established the principle that allows private individuals to bring actions before their national judges based on Community law.
Community law relies heavily on national laws of Member States for its enforcement. By virtue of Article 234, individuals are able to invoke Community law and to urge a national court to ask to the ECJ the question of whether and how Community law should be applied.13 The direct effect on EU
law is surely the most important and also the most effective possibility in order for individuals to enforce EU law. Once it is accepted that Community law is directly effective and prevails over national law, the way is open for an individual with a right under Community law -or an interest in its application-to bring proceedings in the national courts and thus application-to make use of national legal remedies to enforce it. Principal actors, in that level of enforcement, are the individuals who have their rights enforced by national judges. In other words, unlike public enforcement procedures where there is a centralized principal actor, namely the Commission, in case of direct private enforcement, the distinguished feature is the decentralization of the enforcement power.
The enforcement of EU law is first a duty of the Commission, but it is a duty that the Commission alone cannot fully accomplish. The ECJ, aware of that fact, has promoted the role of individuals with case law and shifted the emphasis in the law enforcement from Articles 226 and 227 to Article 234. In other words, the emphasis has turned from the public enforcement to the private one.
Since the famous Van Gend en Loos Case, it is established case law that the application of the Article 226 procedure does not preclude an action under Article 234.14 Individuals may, irrespective of whether or not the Commission
has initiated a procedure under Article 226 against a Member State, rely on Community law.15 However, those possibilities for individuals are closely
11 Craig, P. and De Burca, G., 1998, p. 377. 12 Case 26/62, Van Gend en Loos [1963] ECR 1,13.
13 Mattli, W. and Slaughter, A., Constructing the European Community Legal System
from the Ground up: The Role of Individual Litigants and National Courts, Harvard Jean
Monnet Working Paper No. 6/96, http://www.jeanmonnetprogram.org/papers/96/9606ind.html.
14 The Court held that "the vigilance of individuals concerned to protect their rights
amounts to an effective supervision in addition to the supervision entrusted by Articles 169 and 170 to the diligence of the Commission and of the Member States. "
linked with their personal, private interests. By defending those interests the individual may serve the general interest as well, but he cannot raise an action merely because that may be in the general interest as such.16
B. Insufficiency of Direct Effect to Secure a Full and Effective Enforcement of EU Law
The principle of direct effect has done much to enable citizens to assert their Community rights, and obtain an appropriate remedy in the individual case, but it is not sufficient to secure the full and effective enforcement of Community Law.17 The main limits of the direct effect lie in the justiciability of
the case, i.e. whether the national court is able, equipped with the directive provisions, to deal with the problem before it, and in the possibility of using the directive solely against the state.18
In some cases, Community provisions may not be sufficiently precise and unconditional to be capable of having direct effect. Even where this is the case, the principle of direct effect only operates to protect Community rights and secure their enforcement in the individual case, where individuals are aware of their directly effective rights and willing to enforce them, and therefore, Community law is only occasionally and haphazardly enforced.19 Whilst a
ruling in the individual's favor based on a directly effective provision of Community law is binding erga omnes, it does not in itself correct shortcomings in national law, and therefore, differences between Community law and national laws constitute a state of uncertainty for the individual.20
Another drawback causing the insufficiency of direct effect doctrine as an enforcement measure is its inadequacy in relations between individuals. Even when they are sufficiently precise and unconditional to be capable of direct effects, as the Court held in Marshall v. Southampton A.H.A.21, directives are not adequate to provide a satisfactory basis for horizontal effects; i.e. a directive may not of itself impose obligations on an individual and a provision of a directive may not be relied upon as such against such a person.22
16 Audretsch, H. A. H., 1986, p. 245.
17 Steiner, J., "From direct effects to Francovich: shifting means of enforcement of
Community Law", European Law Review, Vol. 18, 1993, p. 3.
18 Prêchai, S., Directives in European Community Law: A study of Directives and
Their Enforcement in National Courts, Oxford, 1995, p. 359.
"Steiner, J. (1993), p. 6.
20 Steiner, J. (1993), p. 6.
21 Case 152/84. Marshall [1986] ECR723.
22 See quasi horizontal direct effect of Directives in Case C-194/94, CIA Security [1996]
C. A More Effective Means of Private Enforcement: State Liability The limitations of the principles of direct effect, introduced by the ECJ as a means of securing the effective enforcement of Community law when Member States had failed to fulfill their Community obligations, led the Court to find, in Francovich23', new and more effective means of private enforcement. 24 The
principle of state liability has first been expressed broadly in that case, which states that in case of breach of a Member State obligation, damages caused by that breach can be claimed and that this principle is irrespective of the direct effect of the provision at issue. Accordingly, even in case the provision of EU law is not capable of being directly effective, nonetheless there can still be state liability of the Member States.
The revolutionary aspect of Francovich is that there is one particular remedy of Community law that must be available in national legal systems: the right to obtain remedy. Such a remedy for individuals deprived of their Community rights as a result of the state's failure to implement Community law provision, is necessary to ensure an effective enforcement EU law.
An examination in depth of the state liability principles will not be made in this article, and we will be contented with mentioning that it is an alternative and, as being irrespective of direct effect of the provision, a more effective measure to ensure the enforcement of EU law. The specific characteristics of both direct effect and state liability principles allow them to operate in a complementary fashion: one takes over where another leaves off.25
II. INDIRECT PRIVATE ENFORCEMENT OF EU LAW: ROLE OF INDIVIDUALS IN THE COMMISSION ENFORCEMENT
A. Individuals Complainants in Commission Enforcement
The Commission, as also mentioned earlier, is the only institutionalized supervisor provided for in the Treaties. The role it plays in the enforcement of EU law finds its Treaty basis in Article 226, which leaves certain discretion to the Commission to start proceedings. First it shall deliver a reasoned opinion, if it considers that a Member State has failed to fulfill a Treaty obligation. Then it may bring the matter before the Court of Justice, if the state does not comply with the opinion.
Joined Cases C-6/90 and C-9/90, Francovich [1991] ECR 1-5357. Steiner, J. (1993), p. 8.
Every natural or legal person is empowered to draw the Commission's attention to an alleged infringement of Community law by submitting a complaint. However, neither the EU Treaty nor secondary Community legislation has established a specific legal framework for the review and treatment of complaints by the Commission.26 The rights of complainants
vis-à-vis the Commission have thus been gradually developed by the case law of the Court of Justice and the Court of First Instance.27
In order to understand the role of an individual in Commission enforcement correctly, we should first take into consideration that the Commission is not a court of law to protect individuals' rights. The Commission is neither empowered to award damages to an individual complainant nor under a duty to stop an infringement of Community law with a view to protect the complainant's interests. However, the fact that the Commission has not primarily been charged with the protection of the complainant's rights, does not necessarily mean that the Commission does not have any obligation vis-à-vis a complainant. It is under an obligation to give attention to the complaints that it receives: this is sometimes referred to as a duty of vigilance.29
Although individual complainants have no control over the commencement of proceedings against a Member State, their role in bringing potential infringements to the attention of the Commission is evidently significant.30
Most obviously, because of limited investigative powers and resources, the Commission has relied on the efforts of complainants in effect to sustain its position in law enforcement.31 As indicated in the Fifteenth Annual Report of
the Commission, 957 of 1218 cases in the year 1997 stem from complaints made by individuals.
However, there had been a gradual decline in the number of complaints and it was speculated whether this indicated a lack of public understanding of the Commission's function.32 Various improvements notwithstanding, the
reality is far from the Commission's rhetoric of "fostering a real People's Europe", which has been stated as an objective of the attempts to encourage the use of Article 226 procedure in the Commission's Tenth Annual Monitoring
26 Maselis, I. and Gilliams, H. M., "Rights of Complainants in Community Law",
European Law Review, Vol. 22,1997, p. 103.
27 Maselis, I. and Gilliams, H. M., (1997), p. 103. 28 Maselis, I. and Gilliams, H. M., (1997), p. 104.
29 See e.g. Case 210/81 Demo-Studio Schmidt [1983] ECR 3045. 30 Craig, P. and De Burca, G., 1998, p. 404.
31 Rawlings, R., (2000), p. 11.
Report (1993). Even if the idea that this will create "a people's Europe" may seem fanciful, it is certainly the case that the ability to bring a complaint about a Member State to the Commission adds another useful dimension to the remedial provisions of Community law.34
B. Curative Effect of Private Enforcement on the Problems of Public Enforcement
Public model of enforcement, despite its significant role in the enforcement of EU law, has a number of deficiencies, which threats the effectiveness of enforcement procedures. In this part of the paper, we will not deal with all of those problems but only with ones, which are cured or alleviated by the private model of enforcement, particularly by direct private enforcement.
One of the difficulties with public enforcement is closely related to the knowledge of the existence of a breach of Community law. Although it is a duty of the Commission to acquire such knowledge, because of the relatively broad scope of the Treaty and the volume of the second legislation, and of limited investigative powers and resources of the Commission, that mechanism is inadequate to deal with the number of infringements that take place at all levels. Private enforcement alleviates this problem particularly by two means, namely the direct effect doctrine and the role of individual complainants in Commission enforcement. An individual who believes himself to be wronged by Member State action which is contrary to the Treaty is in the optimal position to know the facts to which the alleged violation relates.35
Another difficulty arising from the public enforcement procedures is related to remedies, precisely because they have a number of limitations. Under Article 228, a Member State found to be in breach of the Treaty shall take the necessary measures to comply with the judgment of the ECJ. If the State continues to be recalcitrant, there are limits as to what can realistically be done.36 Private enforcement and particularly direct effect evade that problem. In
part, this is because the action is begun and ended in the national courts, and national governments are more likely to adhere to a judgment given within their national legal system.37
Rawlings, R., (2000), p. 12. Rawlings, R., (2000), p. 12. Craig, P. P. (1999), p. 455. Craig, P. P. (1999), p. 456. Craig, P. P. (1999), p. 456.
CONCLUSION: ROLE OF ACTIVE CITIZENSHIP
The use of national courts to enforce the Community law has some considerable advantages for both the Commission and individuals. From the perspective of the Commission, national actions ease the Commission's workload, by decentralizing law enforcement in this area.38 Public enforcement
through the Commission is thus complemented by private enforcement through national courts. Moreover, support by individual complainants to the Commission to detect infringements is another advantage of private enforcement. From the perspective of private parties themselves, the ability to use national courts also has advantages: the action is not dependent on the approval of the Commission, and Community law claims can be combined with those of a domestic nature.39 Furthermore, since Community law is enforced in
national courts, in accordance with familiar national rules of procedure, and in this way it promotes the actual integration of Community law into the national legal order.40
On the other hand, there are also several disadvantages. Since Community law rules must, in view of their application and enforcement, pass through the national system, the effect of Community rules may be affected by the particularities of these systems of judicial protection.41 Plaintiff suing in
national courts may be faced with difficult obstacles concerning the burden of proof, standard of proof, discovery and the availability of interlocutory relief. Any such action will be more costly as compared to investigation by the Commission; and there can be jurisdictional difficulties in locating the suitable forum.42 Similarly, the effectiveness of remedies available for enforcement of
Community law provisions may differ considerably, as may the powers of the courts.43
Having analyzed at some length the multiple aspects of private enforcement of EU law, it can be mentioned that those positive impacts of individuals' contributions have served the transformation of the EU from a union of states to 'a closer union among the peoples of Europe ', as stated in the preamble of the Treaty. The increasing role of individuals in the enforcement of 38 Ehlermann, C. D., "Implementation of EC Competition Law by National Anti-Trust
Authorities" European Competition Law Review Vol. 88, 1996, p. 93.
39 Craig, P. and De Burca, G., 1998, p. 374.
40 Bridge, J., "Procedural Aspects of the Enforcement of European Community Law
through the Legal System of the Member States", European Law Review, 1984, p. 28.
41 Prêchai, S., 1995, p. 149.
42 Shaw, J., "Decentralisation and Law Enforcement in EC Competition Law", Legal
Studies, Vol. 15, 1995, p. 145.
EU law is a consequence of the vision which does not consider the Treaty as merely the business of Member States, but as a form of system in which active citizenship principle is one of the sine qua non characteristics.
Recognizing some powers and roles for the individual subjects in the enforcement procedures is a must, since the institutions of the EU cannot detect themselves all violations of Community law. Especially the influence of Article 234 (former Article 177) procedure has changed the Commission's monopoly of being the guardian of the treaties. Such support by individuals is obviously beneficial and even necessary for the effectiveness of the enforcement of EU law. The logic of a Europe of Citizens rather than a Europe of States requires that support.
